Citation Nr: 1722315
Decision Date: 06/15/17 Archive Date: 06/29/17
DOCKET NO. 10-24 917 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUES
1. Entitlement to an increased evaluation for scoliosis of the thoracic and lumbar spine with degenerative changes, evaluated at 10 percent prior to March 9, 2016.
2. Entitlement to an increase evaluated for lumbar spondylosis with spondylolisthesis with spinal stenosis and degenerative disc disease (previously rated as degenerative arthritis of the spine with spinal stenosis and spondylolisthesis), evaluated at 40 percent beginning March 9, 2016.
3. Entitlement to an evaluation in excess of 20 percent disabling for radiculopathy femoral nerve, right lower extremity, (previously rated as radiculopathy right lower extremity).
4. Entitlement to an evaluation in excess of 20 percent disabling for radiculopathy femoral nerve, left lower extremity, (previously rated as radiculopathy left lower extremity).
5. Entitlement to an evaluation in excess of 20 percent disabling for radiculopathy sciatic nerve, right lower extremity.
6. Entitlement to an evaluation in excess of 20 percent disabling for radiculopathy sciatic nerve, left lower extremity.
7. Entitlement to a total rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: New York State Division of Veterans' Affairs
ATTORNEY FOR THE BOARD
L.J. Bakke, Counsel
INTRODUCTION
The Veteran served on active duty from February 1984 to February 1986.
This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.
This case was twice remanded for additional development, in December 2012 and in August 2014.
In December 2014, the RO granted service connection for radiculopathy of the right and left lower extremities, associated with the service-connected scoliosis, thoracic and lumbar spine with mild degenerative changes, and assigned 10 percent evaluations each, from February 25, 2013.
In October 2016, the RO recharacterized the service-connected scoliosis, thoracic and lumbar spine with mild degenerative changes as degenerative arthritis of the spine with spinal stenosis and spondylolisthesis, and evaluated the disability as 40 percent disabling, beginning March 9, 2016.
In October 2016, the RO also recharacterized the service-connected radiculopathy of the right and left lower extremities as radiculopathy of the femoral nerves of the right and left lower extremities, associated with the service-connected degenerative arthritis of the spine with spinal stenosis and spondylolisthesis. The RO assigned 20 percent evaluations, each, beginning March 9, 2016. In addition, the RO granted service connection for radiculopathy of the sciatic nerves of the right and left lower extremities, also associated with the service connected spine disability, and assigned 20 percent evaluations, each, from March 9, 2016.
The matters on appeal are remanded for further development.
REMAND
Following the October 2016 RO grant of 20 percent ratings for radiculopathy of the bilateral femoral and sciatic nerve disabilities, the Veteran filed January 2017 claims for increased ratings for the service-connected spine and radiculopathy disabilities. Following those claims, VA examinations were conducted in February and April 2017, which led the RO to propose to reduce the spine and radiculopathy claims in a May 2017 rating decision.
The Board observes that since the most recent supplemental statement of the case (SSOC) issued in December 2014, additional relevant medical evidence to include VA examinations relevant to the matters on appeal have been associated with the claims file. The Board concludes that a remand for a SSOC is necessary before a decision can be reached on these matters.
The evidence of record, and the Veteran himself, have raised the issue of a temporary total disability evaluation based on individual unemployability (TDIU). Specifically, the Veteran was noted to be homeless and unemployed at one point, and while later employed, continued to aver that his service-connected back disability has made it difficult to obtain and retain gainful employment.
Accordingly, entitlement to TDIU is raised by the record. Further development is required before adjudication of this matter can be completed.
Accordingly, the case is REMANDED for the following action:
1. Conduct all appropriate development required to adjudicate the Veteran's claim for TDIU.
2. Undertake any other appropriate development and readjudicate the issues on appeal, to include TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative, should be provided with a SSOC.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs